IN THE CASE OF:	

		BOARD DATE:	  9 June 2011

		DOCKET NUMBER:  AR20100029570 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests:

	a.  the total elimination of an "unwarranted" DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated
5 February 2007, from the restricted section of his Official Military Personnel File (OMPF); and

	b.  referral to a Special Selection Board (SSB) [interpreted to mean Standby Advisory Board (STAB), since SSBs are exclusive to commissioned officers] for consideration to sergeant first class (SFC)/E-7 for rank lost because of an "impermissible Article 15."

2.  The applicant states he was a proud noncommissioned officer (NCO) doing his job.  He states he received an Article 15 for returning fire in a combat zone following a very unprofessional Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) investigation.  He states he was eventually vindicated with no proof of dereliction, but the suspended punishment is still marring his record and has prevented his promotion during several promotion cycles.  

3.  The applicant's counsel provides documents on the applicant's behalf.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the total elimination of an unwarranted and unjustified
DA Form 2627, dated 1 July 2005, from the restricted section of the applicant's OMPF.

2.  Counsel states:

* the applicant was a well-respected NCO, an expert marksman, and elite warrior who had extensive combat experience
* the applicant returned fire during an ambush, an act clearly authorized by Army regulations and unit Standing Operating Procedures (SOP)
* the Article 15 was administered after an inept Army Regulation 15-6 investigation containing numerous procedural errors
* the Article 15, despite the suspension of its punishments, has stalled the applicant's career
* the applicant was not derelict in his duties
* the Article 15 must be totally expunged; a suspended punishment leaves the applicant in "no man's land" with the insinuation he did something wrong
* the applicant was denied promotion opportunities for 20 months because of this unwarranted Article 15; it is extremely likely he would have been promoted earlier

3.  Counsel provides an 11-page Brief in Support of Application for Redress, with annexes A-N and indices A-C.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 30 November 1994.  He completed training and he was awarded military occupational specialty (MOS) 92Y (Unit Supply Specialist).  On a later unknown date, he completed training and he was reclassified into MOS 74D (Chemical Operations Specialist).  He has served through several reenlistments in various staff and leadership positions within and outside the continental United States, and he is currently serving as a staff sergeant (SSG)/E-6.

2.  On 14 August 2006, while serving in Iraq and holding the rank/pay grade of sergeant (SGT)/E-5, and in an open hearing, he accepted nonjudicial punishment (NJP), under the provisions of Article 15 of the UCMJ, for dereliction in the performance of duty by negligently failing to positively identify as a legitimate military target, the object he engaged with his M240B machine gun, as it was his duty to do.  His punishment consisted of a reduction to specialist (SPC)/E-4, forfeiture of $1,031.00 pay per month for 2 months, and 45 days of restriction and extra duty.  The imposing commander directed the original DA Form 2627 be filed in the restricted section of the applicant's OMPF.  The applicant elected to appeal his punishment and to submit additional matters.  On 10 May 2007, his brigade commander suspended his punishment for 30 days.

3.  A review of his OMPF reveals the DA Form 2627, dated 5 February 2007, is filed in the restricted section of his OMPF.

4.  The applicant's counsel provides an 11-page Brief in Support of Application for Redress, with annexes A-N and indices A-C, containing:

* sworn statements
* Congressional correspondence
* an extract of the Army Regulation 15-6 investigation, containing findings and recommendations sections
* indistinguishable black and white aerial photographs, presumed to be various main supply routes (MSR) in Iraq 
* rebuttal and appeal documents
* DA Forms 1059 (Service School Academic Evaluation Reports)
* DA Forms 2166-8 (NCO Evaluation Report (NCOER))
* Combat Action Badge award orders

These documents appear to portray the applicant's Article 15 punishment as unjust, unwarranted, and harmful to his military career.  The evidence of record shows he was promoted to SSG on 1 February 2009.

5.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts-Martial.  It provides that a commander should use nonpunitive administrative measures to the fullest extent to further the efficiency of the command before resorting to NJP under the UCMJ.  Use of NJP is proper in all cases involving minor offenses in which nonpunitive measures are considered inadequate or inappropriate.  Prompt action is essential for NJP to have the proper corrective effect.  NJP may be imposed to correct, educate, and reform offenders who the imposing commander determines cannot benefit from less stringent measures; to preserve a Soldier’s record of service from unnecessary stigma by record of court-martial conviction; and to further military efficiency by disposing of minor offenses in a manner requiring less time and personnel than trial by court-martial:


	a.  Paragraph 3-6a addresses the filing of an NJP and provides that a commander’s decision whether to file a record of NJP in the performance section of a Soldier’s OMPF is as important as the decision relating to the imposition of the NJP itself.  In making a filing determination, the imposing commander must weigh carefully the interests of the Soldier’s career against those of the Army to produce and advance only the most qualified personnel for positions of leadership, trust, and responsibility.  In this regard, the imposing commander should consider the Soldier’s age, grade, total service (with particular attention to the Soldier’s recent performance and past misconduct), and whether the Soldier has more than one record of NJP directed for filing in the restricted section.  

	b.  Paragraph 3-37b(1)(a) states that for Soldiers in the ranks of SGT and above, the original will be sent to the appropriate custodian for filing in the OMPF.  The decision to file the original DA Form 2627 in the performance section or restricted section of the OMPF will be made by the imposing commander at the time punishment is imposed.  The filing decision of the imposing commander is subject to review by superior authority.

	c.  Paragraph 3-37b(1)(a)2 states that the restricted section is that portion of the OMPF that contains information not normally viewed by career managers or selection boards except as provided in Army Regulation 600-8-104 (Military Personnel Information Management/Records) or specified in the Secretary of the Army's written instructions to the selection board.

	d.  Paragraph 3-43 contains guidance on the transfer or removal of DA Forms 2627 from the OMPF.  It states applications for removal of an Article 15 from the 
OMPF based on an error or injustice will be made to the Army Board for Correction of Military Records (ABCMR).  It further indicates that there must be clear and compelling evidence to support the removal of a properly completed, facially-valid DA Form 2627 from a Soldier’s record by the ABCMR.

6.  Army Regulation 600-8-104 provides policies, operating tasks, and steps governing the OMPF.  This document states that only those documents listed in Table 2-1 and Table 2-2 are authorized for filing in the OMPF.  Depending on the purpose, documents will be filed in the OMPF in one of three sections:  performance, service, or restricted.  Table 2-1 (Composition of the OMPF) shows that the DA Form 2627 is filed in either the performance or restricted section of the OMPF, as directed in Item 5 of the DA Form 2627.

7.  Army Regulation 600-8-104, paragraph 2-3 (Composition of the OMPF) provides that the restricted section of the OMPF is used for historical data that may normally be improper for viewing by selection boards or career managers.  The release of information in this section is controlled.  It will not be released without written approval from the Commander, U.S. Army Human Resources Command or the Headquarters, Department of the Army selection board proponent.  This paragraph also provides that documents in the restricted section of the OMPF are those that must be permanently kept to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluation periods; show corrections to other parts of the OMPF; record investigation reports and appellate actions; and protect the interests of the Soldier and the Army.

8.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) prescribes policy and procedures governing promotion and reduction of Army enlisted personnel.  Chapter 4 contains guidance on the promotions of senior enlisted personnel who are considered under a DA centralized promotion system. Paragraph 4-14 contains the rules for promotion reconsideration by a STAB.  It states, in pertinent part, that a STAB may be authorized when it is determined a material error existed in a Soldier's OMPF when the file was reviewed by a senior enlisted promotion board.  An error will be considered material when there is a reasonable chance that had the error not existed, the Soldier may have been selected.  STAB reconsideration is normally authorized only for Soldiers who were not selected for promotion in the PZ and not for Soldiers who were not selected in the SZ.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant violated the UCMJ and subsequently accepted NJP on 5 February 2007 for dereliction of duty.  He had the option of not accepting the NJP and demanding trial by court-martial.  The 
imposing commander directed this Article 15 be filed in the restricted section of his OMPF.  After appeal, his punishment was suspended for 30 days; however, the suspension of punishment does not equate to an absolution of guilt.

2.  His NJP proceedings were conducted in accordance with law and regulation and his Article 15 and allied documents are facially correct and properly filed in the restricted portion of his OMPF as directed by the imposing commander.  There is no evidence of record, and he provides no evidence, to show that the DA Form 2627 is untrue or unjust.  In order to remove a document from the OMPF, there must be clear and convincing evidence showing that the document is untrue or unjust.  

3.  He now believes the presence of this Article 15 on his OMPF will impact his chances for career progression; however, in accordance with Army Regulations, documents filed on the restricted section of the OMPF are not viewed by selection boards, with the exception of the most senior enlisted grade.  
4.  His contentions that his career has been marred or stifled by this instance of NJP, and that his record should be referred to a STAB for consideration to SFC, are unfounded.   STABs are convened to consider the records of enlisted Soldiers, SSG and above, for consideration for promotion to the Army's senior enlisted ranks, SFC through sergeant major.  The evidence of record shows his date of rank (DOR) to SSG is 1 February 2009; therefore, his time-in-grade is not excessive, and he should be considered by the first DA SFC promotion selection board for which he meets general eligibility.

5.  The evidence of record does not show, and neither the applicant nor his counsel has shown, that the presence of NJP in the restricted section of his OMPF delayed his promotion to SSG.  Absent definitive evidence showing such, there is no basis for adjusting his DOR to SSG, thereby making him eligible for promotion consideration to SFC at an earlier date.    

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ___X_____  ___X_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      ___________X____________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont)                                         AR20100007709



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ABCMR Record of Proceedings (cont)                                         AR20100029570



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